Persona designata
Encyclopedia
The persona designata doctrine
is a doctrine in law, particularly in Canadian and Australian constitutional law
which states that, although it is generally impermissible for a federal judge
to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the judge personally, as opposed to powers having been conferred on the court
. The doctrine in the more general sense has been recognised throughout the common law countries (including the United States). Persona designata, according to Black's Law Dictionary
, means "A person considered as an individual rather than as a member of a class", thus it may be a person specifically named or identified in a lawsuit, as opposed to the one belonging to an identified category or group. While it has its origin in Montesquieu's doctrine of the separation of powers, it can be traced back as far as Aristotle
's Politics.
In Australia the doctrine is considered to be an exception to the Boilermakers' doctrine
of separation of powers
, which holds that conferral of non-judicial power on a Chapter III court
(a federal court) is unconstitutional.
is parliamentary
, with a "fusion of powers
" between the executive
and the legislature
, the separation of powers
with respect to the judiciary
has long been accepted as an important aspect of the Constitution of Australia
. The importance of the principle is traditionally said to have reached its high point in 1956 with the Boilermakers' case
, in which the High Court of Australia
held that non-judicial power could not be conferred on a court established under Chapter III of the Australian Constitution. However, Australia also has a long history of judges being appointed to non-judicial positions.
The idea that some non-judicial functions can be conferred on judges in their personal capacity had been present in Australian law for some time; some trace it to cases such as Medical Board of Victoria v Meyer in 1937, while others regard the doctrine as settled law since at least 1906, and the case of Holmes v Angwin.
case of Drake v Minister for Immigration & Ethnic Affairs
, which concerned a challenge to the appointment of Justice John Davies, of the Federal Court, to the position of Deputy President of the Administrative Appeals Tribunal
. In their joint judgment, Chief Justice Bowen
and Justice Deane
said:
The doctrine was first clearly applied by the High Court of Australia
in the 1985 case of Hilton v Wells, which involved a challenge to the constitutional validity of certain telecommunications legislation which permitted telephone tapping
by way of a warrant
, which had to be issued by "a judge". The word "judge" in that piece of legislation was defined to mean a judge of the Federal Court or of the Supreme Court of the Australian Capital Territory
, or, in certain circumstances, a judge of the Supreme Court of the Northern Territory
or any of the State Supreme Courts
. In their majority judgment, Chief Justice
Gibbs
and Justices Wilson
and Dawson
acknowledged the difficulty of determining whether a function has been conferred on a court or on a judge of that court, saying that:
The Justices continued, and considered the significance of the nature of the function being conferred to the question of whether the function is to be exercised by the judge in their capacity as a judge, or in their capacity as a regular person:
The High Court rejected the challenge to the constitutional validity of the legislation in a three to two decision.
for judges exercising the function, like those afforded to Justices of the High Court. The court unanimously agreed that the function was being conferred on the judges as personae designatae, but the question was whether the function was incompatible with their judicial office.
In a joint majority judgment, Chief Justice Brennan
and Justices Deane, Dawson and Toohey, discussed what situations might enliven the incompatibility condition:
The majority held that, although the function of issuing warrants was closely connected with the purely executive process of law enforcement, it did not amount to judicial participation in a criminal investigation (which would be incompatible) and that the participation of impartial, independent judicial officers in the process would actually reinforce public confidence in the judiciary. That is, the majority recognised that the incompatibility exception existed, but found that it did not apply in this situation.
In 1996, the High Court applied the incompatibility condition in the case of Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, which concerned the appointment of Justice Jane Mathews of the Federal Court to prepare an Indigenous heritage report in relation to the Hindmarsh Island bridge development
. The court held that legislation authorising the appointment was invalid, because the functions conferred, which included forming opinions and giving advice about areas which should be protected under heritage legislation, were incompatible with judicial office.
"the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles". This view has been upheld numerous times in Canadian Supreme Court decisions. For instance in Re Herman and Dep. A.-G. Can (1978), Chief Justice Larkin stated:
and affirmed in Minister of Indian Affairs & Northern Development v. Ranville (1982) where Dickson J. held:
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
is a doctrine in law, particularly in Canadian and Australian constitutional law
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
which states that, although it is generally impermissible for a federal judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the judge personally, as opposed to powers having been conferred on the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
. The doctrine in the more general sense has been recognised throughout the common law countries (including the United States). Persona designata, according to Black's Law Dictionary
Black's Law Dictionary
Black's Law Dictionary is the most widely used law dictionary in the United States. It was founded by Henry Campbell Black. It is the reference of choice for definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S...
, means "A person considered as an individual rather than as a member of a class", thus it may be a person specifically named or identified in a lawsuit, as opposed to the one belonging to an identified category or group. While it has its origin in Montesquieu's doctrine of the separation of powers, it can be traced back as far as Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
's Politics.
In Australia the doctrine is considered to be an exception to the Boilermakers' doctrine
R v Kirby; Ex parte Boilermakers' Society of Australia
R v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; 94 CLR 254 was a case in which the High Court of Australia held that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised non-judicial functions...
of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, which holds that conferral of non-judicial power on a Chapter III court
Chapter III Court
In Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power...
(a federal court) is unconstitutional.
Background
While the Australian system of governmentGovernment of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
is parliamentary
Parliamentary system
A parliamentary system is a system of government in which the ministers of the executive branch get their democratic legitimacy from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined....
, with a "fusion of powers
Fusion of powers
Fusion of powers is a feature of parliamentary democracies, wherein the executive and legislative branches are intermingled. It is often contrasted with the more strict separation of powers found in the presidential democracies. Fusion of powers exists in many, if not a majority, of democracies...
" between the executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
and the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
, the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
with respect to the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
has long been accepted as an important aspect of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. The importance of the principle is traditionally said to have reached its high point in 1956 with the Boilermakers' case
R v Kirby; Ex parte Boilermakers' Society of Australia
R v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; 94 CLR 254 was a case in which the High Court of Australia held that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised non-judicial functions...
, in which the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
held that non-judicial power could not be conferred on a court established under Chapter III of the Australian Constitution. However, Australia also has a long history of judges being appointed to non-judicial positions.
The idea that some non-judicial functions can be conferred on judges in their personal capacity had been present in Australian law for some time; some trace it to cases such as Medical Board of Victoria v Meyer in 1937, while others regard the doctrine as settled law since at least 1906, and the case of Holmes v Angwin.
Development of the doctrine
The first clear expression of the doctrine in the post-Boilermakers context was in the 1979 Federal Court of AustraliaFederal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
case of Drake v Minister for Immigration & Ethnic Affairs
Drake v Minister for Immigration & Ethnic Affairs
Drake v Minister for Immigration & Ethnic Affairs was a 1979 Australian legal case dealing with drugs, deportation and judicial roles.Drake was convicted of possessing cannabis and received a prison sentence. The Minister of Immigration and Ethnic Affairs made an order to deport Drake under...
, which concerned a challenge to the appointment of Justice John Davies, of the Federal Court, to the position of Deputy President of the Administrative Appeals Tribunal
Administrative Appeals Tribunal
The Administrative Appeals Tribunal is an Australian tribunal which provides for quasi-judicial review of administrative decisions by the Australian federal government. It is not a court and not part of the Australian court hierarchy, however its decisions are subject to review by the Federal...
. In their joint judgment, Chief Justice Bowen
Nigel Bowen
Sir Nigel Hubert Bowen, AC, KBE was an Australian politician and judge.-Biography:Bowen was born in a log cabin in Summerland, British Columbia, Canada, of Welsh and English parents. He came to Australia as a boy and was educated for two years in England and later at The King's School in Parramatta...
and Justice Deane
William Deane
Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...
said:
"There is nothing in the Constitution which precludes a justice [of a Chapter III court] from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Chapter III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court."
The doctrine was first clearly applied by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in the 1985 case of Hilton v Wells, which involved a challenge to the constitutional validity of certain telecommunications legislation which permitted telephone tapping
Telephone tapping
Telephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
by way of a warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
, which had to be issued by "a judge". The word "judge" in that piece of legislation was defined to mean a judge of the Federal Court or of the Supreme Court of the Australian Capital Territory
Supreme Court of the Australian Capital Territory
The Supreme Court of the Australian Capital Territory is the superior court for the ACT. It has unlimited jurisdiction within the territory in civil matters , and hears the most serious criminal matters...
, or, in certain circumstances, a judge of the Supreme Court of the Northern Territory
Supreme Court of the Northern Territory
The Supreme Court of the Northern Territory is the superior court for the Australian Territory of the Northern Territory. It has unlimited jurisdiction within the territory in civil matters, and hears the most serious criminal matters...
or any of the State Supreme Courts
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
. In their majority judgment, Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
Gibbs
Harry Gibbs
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...
and Justices Wilson
Ronald Wilson
Sir Ronald Darling Wilson, AC, KBE, CMG, QC was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportunity Commission between 1990 and 1997.Wilson is probably best known as...
and Dawson
Daryl Dawson
Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...
acknowledged the difficulty of determining whether a function has been conferred on a court or on a judge of that court, saying that:
"It is a question which involves fine distinctions, which some may regard as unsatisfactory... the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it."
The Justices continued, and considered the significance of the nature of the function being conferred to the question of whether the function is to be exercised by the judge in their capacity as a judge, or in their capacity as a regular person:
"If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person."
The High Court rejected the challenge to the constitutional validity of the legislation in a three to two decision.
Limits
Two broad limits to the doctrine have been identified, which essentially act as preconditions to the conferral of a non-judicial function:- the judge must agree to the conferral of the function, and
- the function must not be incompatible with the judge's judicial functions.
Incompatibility
The issue of incompatibility was expounded in the 1995 case of Grollo v Palmer, which concerned new provisions in the same telecommunications legislation that had been considered in Hilton v Wells. Following the decision in Hilton, the legislation had been amended to make it more explicit that the function of granting warrants was being conferred on judges in their personal capacity, and had made the judge's consent an eligibility requirement, but the changes had also introduced protections and immunitiesJudicial immunity
Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from lawsuits brought against them for official conduct in office, no matter how incompetent, negligent, or malicious such conduct might be, even if this conduct is in violation of statutes.For...
for judges exercising the function, like those afforded to Justices of the High Court. The court unanimously agreed that the function was being conferred on the judges as personae designatae, but the question was whether the function was incompatible with their judicial office.
In a joint majority judgment, Chief Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
and Justices Deane, Dawson and Toohey, discussed what situations might enliven the incompatibility condition:
"Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished."
The majority held that, although the function of issuing warrants was closely connected with the purely executive process of law enforcement, it did not amount to judicial participation in a criminal investigation (which would be incompatible) and that the participation of impartial, independent judicial officers in the process would actually reinforce public confidence in the judiciary. That is, the majority recognised that the incompatibility exception existed, but found that it did not apply in this situation.
In 1996, the High Court applied the incompatibility condition in the case of Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, which concerned the appointment of Justice Jane Mathews of the Federal Court to prepare an Indigenous heritage report in relation to the Hindmarsh Island bridge development
Hindmarsh Island bridge controversy
The Hindmarsh Island bridge controversy was a 1990s Australian legal and political controversy that involved the clash of Indigenous Australian religious beliefs and property rights...
. The court held that legislation authorising the appointment was invalid, because the functions conferred, which included forming opinions and giving advice about areas which should be protected under heritage legislation, were incompatible with judicial office.
Criticisms
D M Gordon wrote in the Canadian Bar Review:"the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles". This view has been upheld numerous times in Canadian Supreme Court decisions. For instance in Re Herman and Dep. A.-G. Can (1978), Chief Justice Larkin stated:
"The concept of persona designata came from the Courts and it can be modified or abolished by the Courts. In my view, I think this Court should declare that whenever a statutory power is conferred upon a Judge or officer of a Court, the power should be deemed exercisable in official capacity as representing the Court unless there is express provision to the contrary. "
and affirmed in Minister of Indian Affairs & Northern Development v. Ranville (1982) where Dickson J. held:
" I was rather of the opinion that this troublesome notion of persona designata had been given its quietus in the recent Herman decision. The Chief Justice's aversion in Herman to the concept of persona designata could not have been more evident (at pp. 4-5 D.L.R., pp. 731-2 S.C.R.):- it is high time to relieve the Courts of the interpretative exercises that have been common in this country when they think that a decision has to be made whether a statutory jurisdiction has been vested in a Judge qua Judge or as persona designata. -In the test formulated in Herman I endeavoured to confine the notion of persona designata to the most exceptional circumstances. The Federal Court of Appeal and the provincial courts which have had to deal with the notion since the Herman decision have grasped how exceptional recourse to persona designata must be. So far as I am aware, in applying the test in Herman, no federally-appointed judge has yet been found to be a persona designata"